Employment Law

Thank you for visiting our Employment section. Below you will find articles and other information in reference the the field of Employment and Labor Law. We have listed the titles to articles we feel would be of interest to employers. You will find the corresponding articles under the list of titles. 

Family Medical Leave Act Record-Keeping Requirements.

Focus on Sexual Harassment

Workers' Compensation: Are Your Workers Classified Properly?

Binding Arbitration of Employment Disputes

Hostile Work Environment Not Limited to Sex

Microsoft Decision Shows Risk of Using Independent Contractors

Avoiding Workplace Violence

Employee Handbooks: A Tool To Use In Avoiding Employment Litigation

FMLA RECORD-KEEPING REQUIREMENTS

A jury in Virginia recently awarded $313,000 pursuant to the Family and Medical Leave Act (FMLA) to a worker who was fired after he took leave to have surgery for a brain tumor. This verdict constitutes the largest award yet under the Act.

The size of this verdict should prompt every employer to evaluate their compliance with the provisions of the Act. The greatest pitfall for employers is the requirement that employers designate absences covered under the Act as FMLA leave and to notify employees in writing of the designation. In the event the employer fails to designate FMLA leave properly or fails to notify the employee of the designation, the employer cannot count that leave time against the employee's 12-week entitlement. That means that an employer who believes that it has lawfully terminated an employee who has taken more than 12 weeks of leave, may be instead liable for backpay and frontpay to the discharged employee.

Under regulations promulgated by the Department of Labor interpreting the FMLA, an employer must inform an employee within two business days after an employee requests leave covered by the FMLA as to whether the leave will be counted against the employee's 12-week entitlement. The burden is on the employer to determine whether the FMLA applies even if the worker does not ask for "FMLA leave." In other words, the employer is required to determine whether or not each and every absence is covered by the FMLA. It is only necessary for the employee to provide enough information to put the employer on notice that the leave may be for an FMLA-qualified reason. It is thus essential that employees who maintain attendance records be trained to identify which absences would be covered under the FMLA and to obtain additional information from employees where it is not clear that the absence is covered under the FMLA. For example, it may be necessary to ascertain whether the employee is under the care of a doctor or has stayed overnight in the hospital.

The employer may initially make the designation orally, but it must be confirmed in writing. The Department of Labor has promulgated a form called the Employer Response to Employee Request for Leave which can be used by employers to designate absences as FMLA leave. 

The Family and Medical Leave Act requires employers with fifty or more employees to provide workers with up to 12 weeks of leave per year because of the birth or adoption of a child; to care for a parent, spouse or child with a serious health condition; or if an employee is unable to work due to serious health condition. A serious health condition is one in which initially the employee is ill for at least three calendar days under the care of a physician or requires an overnight stay in a hospital. Subsequent absences due to a serious health condition can be a single day or even a portion of a day and still be covered under the FMLA. An employer has the right to demand medical certification from its employees to verify the existence of a serious health condition. Again, the Department of Labor has provided a form called the Certification of Physician Form which can be used by employers to obtain verification.

Companies with "no-fault " attendance policies must take particular care to ascertain whether absences are covered under the FMLA before counting them against employees pursuant to these policies. Company attendance records should clearly indicate which absences are covered under the FMLA and which are not.

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Focus on Sexual Harassment

A recent jury verdict imposing over $7,000,000 in punitive damages upon one of the nation's largest law firms in a sexual harassment case focused attention on the need for companies to protect themselves from this kind of exposure. According to a survey, the number of companies reporting one or more sexual harassment incidents among their employees increased from 35 percent in 1991 to 65 percent in 1993.

It has been our experience that the implementation of a clear and specific policy prohibiting such harassment, the adoption of procedures for handling such complaints, and the adoption of a training program for supervisors can be effective in preventing sexual harassment lawsuits from being filed. It is significant that in the aforementioned case, the actual damages were slight but the jury awarded the punitive damages because of the law firm's failure to respond to previous complaints about the offending partner.

Employers cannot assume that it will not happen to them. The defense of "only joking around" has not found favor with investigators of these complaints. Under the 1991 Civil Rights Law, jury trials are now available on Title VII claims of sexual harassment and compensatory and punitive damages may be awarded in addition to lost wages and benefits. If we can assist in helping your firm develop sexual harassment policies and procedures, please feel free to call upon us.

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Workers' Compensation: Are Your Workers Classified Properly?

Workers' compensation rates are determined by classifying employees and charging rates that are dependent on the comparative risks inherent in the job classifications. Thus, a company pays higher premiums for a construction worker or a window washer than it would for an accountant or secretary. However, not all such distinctions are so clear cut. A recent case  involved the contention of a State Insurance Fund that employees who were classified as receptionists were actually security guards. Needless to say, there was a great disparity between the rates for the two classifications.  There are cases of audits conducted by State Insurance Funds and other workers' compensation insurance carriers who have sought what they claimed to be substantial underpayments arising from misclassifying employees to less risky job classifications. In a few situations, the employer discovered that it was due money because its employees had been misclassified.

We recommend that employers conduct their own self-audit to determine if their employees are classified properly prior to the conduct of any audit by their State Insurance Fund or other insurance carrier. We can assist your company in conducting such a self-audit.

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Binding Arbitration of Employment Disputes

As a result of the United States Supreme Court decision in Gilmer v. Interstate/Johnson Lane Corp., more employers are including in their employment agreements with employees provisions mandating compulsory arbitration of age, sex, race, religious, national origin, and disability bias claims.

In Gilmer, the Supreme Court held that an employee was required to arbitrate his claim of age discrimination pursuant to an employment agreement which specifically included in its arbitration clause statutory claims of age discrimination.

For such an agreement to be enforced, it is necessary for the clause to be carefully written to include as many potential claims as possible.

Employers prefer arbitration of employment discrimination claims because of the reduced legal fees involved in defending such claims in arbitration as opposed to court. Moreover, arbitration eliminates the threat of excessive jury verdicts.

To date, Gilmer has not yet been applied to a collective bargaining agreement. However, it is likely that if an arbitration clause in a collective bargaining agreement were to expressly provide for arbitration of such employment discrimination, deferral to arbitration would be required.

If you are interested in implementing a program mandating binding arbitration of employment disputes, please do not hesitate to contact us.

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HOSTILE WORK ENVIRONMENT NOT LIMITED TO SEX

Most companies are aware of the fact that sexual harassment can take one of two forms: quid pro quo in which advancement or continuation in the company is contingent on sexual favors; and hostile environment which can result from abusive comments, offensive jokes, or visible pornography. A recent decision by the United States Court of Appeals for the Sixth Circuit highlights the fact that a hostile work environment that violates the law does not have to be based on sex. In this case, the court held that a hostile environment age discrimination case can be brought under the Age Discrimination in Employment Act. To establish such a claim, the employee must show that the harassment was based on age and that it unreasonably interfered with work performance and created an objectively intimidating, hostile, or offensive work environment.

Accordingly, employers who are on guard to avoid a hostile environment based on sex must also be on guard to prevent a hostile environment based on age, religion, race, national origin, disability, etc. Just as a sexual jokes can create a hostile environment, so can ethnic jokes. In this regard, it should be noted that two black employees at Morgan, Stanley & Co. recently filed suit against the firm alleging that the firm created a hostile environment by permitting e-mail to be transmitted that contained vile and offensive racial remarks. According to the complaint, when they complained about the e-mail, they were threatened with demotion and termination.

A hostile work environment based on race played a key role in a case in California where a jury returned a verdict of $11.1 million to a former sales employee of Pitney Bowes who had resigned after numerous instances of harassment including incidents where co-workers made racial remarks.

In order to avoid this kind of suit, it is necessary for employers to extend their anti-sexual harassment policies to cover other kinds of prohibited harassment. This includes providing a procedure by which employees can complain, without retaliation, of such harassment, the prompt investigation of such complaints, and appropriate remedial action at the conclusion of such investigations. Companies who have such policies and comply with them can usually avoid exposure to harassment claims.

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MICROSOFT DECISION SHOWS RISK OF TREATING EMPLOYEES AS INDEPENDENT CONTRACTOR

In recent years, companies have sought to avoid providing benefits and the consequences of the numerous employment statutes by treating workers as independent contractors or by leasing workers from other companies. However the recent decision by the United States Court of Appeals in Vizcaino, et al. v. Microsoft Corp., as well as actions by numerous administrative agencies, show that the supposed benefits of these practices can prove to be illusory, and employers who engage in these practices can be subject to substantial exposure.

In the Microsoft case, the company had supplemented its core staff with individuals called "freelancers" who were engaged when Microsoft needed to expand its workforce to meet the demands of new product schedules. These freelancers were fully integrated into its workforce. They worked on the same teams with regular employees, shared the same supervisors, performed identical functions and worked the same hours. However, they did not receive the same employee benefits that regular employees received. All of these individuals were told when they were hired that they would not be eligible for benefits and signed agreements in which they acknowledged being independent contractors and being responsible for all taxes, withholding, social security, insurance and other benefits. The court concluded that these individuals were, in fact, employees entitled , under ERISA, to the same benefits that the regular employees enjoyed.

This decision indicates that if individuals are treated in every respect as employees, the mere fact that they are designated as "independent contractors" will not establish such status. In order to establish "independent contractor" status, companies must show that the individuals involved have the right to control the manner and means by which they perform their work. This can include setting their own hours, the right to refuse assignments, the right to subcontract work, or the right to work for other companies. Many administrative agencies also require some evidence that the individual has some investment in equipment and the ability to sustain both a profit and a loss.

Companies who lease employees from other companies who anticipate immunity to the various employment statutes may also be surprised. Even though leased employees may be on the payroll of another company, that does not preclude them from being considered the employees of the lessor company. A lessor company and a lessee company can be joint employers where the lessor company retains control over the terms and conditions of employment of the leased employees. In determining joint employer status, the National Labor Relations Board will look at such factors as supervision of the workers, ability to hire and fire, involvement in day-to day labor relations, establishing wage rates, promoting and disciplining. The bottom line is that if these leased employees are treated the same as your regular employees, they will be legally deemed to be your employees as well as those of the leasing company. The National Labor Relations Board recently conducted oral argument on cases involving joint employer issues where leased employees were utilized. It is anticipated that the NLRB will issue decisions which will broaden the rights of these leased employees to organize and otherwise be treated in the same way as the regular employees of these companies.

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AVOIDING WORKPLACE VIOLENCE

The statistics are startling: Each year almost one million people are injured in the United States as the result of violence taking place in the workplace. Sixteen percent of all violent crime in this country occurs in the workplace. Workplace violence is the leading cause of fatalities in the workplace for women and the second leading cause of death for men in the workplace. An average of twenty employees are the victims of homicide in the workplace each week. More than half of all workers fatally injured on the job in the New York Metropolitan area die as the result of a violent act, the highest rate in the country and double the national rate..

In light of these statistics, it is not surprising that state and federal governmental entities are attempting to address this issue. The United States Department of Labor Occupational Safety & Health Administration (OSHA) is seeking to hold employers responsible for workplace violence under some circumstances. In furtherance of this objective, it has promulgated Guidelines for Preventing Workplace Violence for Health Care and Social Service Workers and has circulated for discussion and comment a draft of Guidelines for Workplace Violence Prevention Programs for Night Retail Establishments. OSHA has targeted these two industries for their first efforts in this area because a disproportionate number of violent incidents occur in these industries. Nearly two-thirds of all non-fatal assaults occur in the health care industry--primarily encounters between patients and nursing staff. The OSHA guidelines cite several factors which put workers in the health care industry at increased risk: prevalence of handguns around patients and their families; the increasing number of acute and chronically mentally ill patients now being released from hospital without follow-up care; the availability of drugs or money at hospitals, clinics, and pharmacies; low staffing levels; isolated work with clients during examinations or treatment. Workplaces in the night retail industry including taxicab establishments, liquor stores, gas stations, grocery stores, jewelry stores, hotels/motels and eating/drinking places have the highest rates of homicide in the nation. The draft guidelines for the night retail industry identify six factors that increase the risks of homicide in the workplace, all of which are usually present in night retail establishments: (1) exchange of money with the public; (2) working alone or in small numbers; (3) working late night or early morning hours; (4) working in high-crime areas; (5) guarding valuable property or possessions; (6) working in community settings.

Both sets of guidelines address only the issue of violence inflicted by third parties, such as robbers or muggers, against employees. They do not address the issue of co-worker violence. These guidelines advocate the establishment of a violence prevention program. The elements of such a program include (1) management commitment and employee involvement, (2) worksite analysis, (3) hazard prevention and control, and (4) safety and health training. Each prevention program should also include recordkeeping and evaluation.

Although the guidelines are currently only advisory and failure to adopt them does not constitute an automatic violation of OSHA, employers can be cited under the general duty clause of the Act if violence is a recognized hazard in their establishments and they do nothing to prevent it.

The New York State Legislature is also considering legislation dealing with the workplace violence issue. One bill would create an exception to the workers' compensation law in order allow employees who are sexually assaulted in the workplace due to derelict or negligent hiring practices of their employer to recover all damages commensurate with their injury. This proposed legislation is a response to a case where an employee at Saks Fifth Avenue was raped by a security guard who had been hired by Saks notwithstanding a previous conviction for sexual assault. If enacted into law, this would require employers to become more diligent checking into the backgrounds of its job applicants before offering them employment. The other pending bill would permit employers to seek injunctive relief on behalf of employees who have been the victims of violence in the workplace or who have been the recipients of credible threats of violence which can reasonably be construed to be carried out in the workplace. This would be particularly applicable of victims of domestic violence.

Clearly, workplace violence is going to constitute a new responsibility for employers. Employers who wish to establish a workplace violence prevention program should make sure that the following elements are included:

1. Pre-employment screening. A background check to determine if there are any relevant prior criminal convictions should be performed. However in performing such an investigation, it is important to bear in mind that under Title VII of the Civil Right Rights Act, employment decisions based on arrest records are unlawful since they have a disparate impact on protected groups. Similarly, pre-employment inquiries as to the mental disability of a job applicant is generally prohibited under the Americans with Disabilities Act. However, an employer may screen out applicants who pose "a direct threat to the health or safety of other individuals in the workplace". A "direct threat" is defined as a "significant" risk to the health or safety of others that cannot be limited by reasonable accommodation. An employer must meet very specific and stringent requirements to establish the existence of a direct threat. The assessment of risk must be based on objective medical or other factual evidence regarding a particular applicant. In addition, the employer must consider whether the risk can be eliminated or sufficiently alleviated by reasonable accommodation.

Checking with prior employers should be done even though it will probably prove to be a frustrating experience. Most employers, in order to avoid exposure to defamation suits, will provide only a neutral reference verifying only dates of employment, classification, and salary levels without making either any positive or negative comments about the employee's job performance.

2. Training. Managers must be trained on appropriate ways to handle employee terminations and discipline. In addition, they must be trained to spot employees who are potentially violent so that preventive action can be taken. Such preventive action may include referral of an employee to an employee assistance plan (EAP).

3. Establishment of Worker-Management Safety Committees. Avenues of communication should be opened to allow workers to suggest methods of improving security and warn of potentially violent situations.

4. Creation of Clear Rules Relating to Employee Conduct. The employer should promulgate a written policy of zero-tolerance for workplace violence, verbal and nonverbal threats, and related conduct.

5. A Comprehensive Security Plan. Such a plan should include a procedure for dealing with incidents; the assignment to an individual of responsibility for maintaining security in the workplace; and establishing a liaison with law enforcement representatives.

Statistics are unavailable to verify whether the adoption of such measures will in fact reduce the likelihood of workplace violence. However, it is clear that employers who fail to take such measures may be exposing themselves to OSHA citations and negligent hiring lawsuits.

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EMPLOYEE HANDBOOKS : A TOOL TO USE IN AVOIDING EMPLOYMENT LITIGATION

A variety of factors have contributed to the explosive growth of employee lawsuits. New laws such as the Civil Rights Act of 1991, which gave employees the right to jury trials in federal discrimination lawsuits, have encouraged unhappy ex-employees to file suit. As the stakes have increased in this litigation, so have the costs of defending these suits. Companies do not have to be passive and stand back and just allow these suits to happen. Rather, companies can be pro-active and adopt programs that can minimize the chances of employee lawsuits and minimize the costs and exposure of such lawsuits when they do happen.

One of the tools that a company can adopt is the creation of an employee handbook. By setting forth policies in black and white, an employee handbook eliminates ambiguities that can lead to litigation. For example, if the employee handbook contains an explicit policy on procedures for employees to follow if they wish to complain of sexual harassment, an employee cannot claim they did not know there was a procedure to investigate such complaints. If an employee fails to utilize such internal procedures before filing suit, the lawsuit will in most circumstances be dismissed. Similarly, if an employee handbook sets forth what is considered prohibited employee conduct, an employee cannot claim that such conduct was not prohibited or that he did not know that such conduct was prohibited.

It is not sufficient for an employer to merely draft a handbook, distribute it to the employees and then put it in a drawer. It is essential that the policies set forth in the handbook be followed consistently. In fact, an employer's failure to comply with its own handbook can be considered to be evidence of disparate treatment or discriminatory motive in an employee lawsuit. It is also necessary for supervisors to be trained about the provisions of the handbook and employment laws, in general, so that your company will not inadvertently commit violations of the various employment laws. Disciplinary incidents must be consistently documented in writing to establish that any particular employee was not singled out for violations of any particular policy.

Many companies are wary of employee handbooks because they are concerned that they create employment contracts. This is not a valid concern. Under Louisiana law, employers will not be bound by a properly-drafted handbook. The only exception to this rule exists where the handbook contains a provision which expressly limits the employer's right to terminate the employee and there exist special circumstances which show the employee's detrimental reliance on that provision.

There is no doubt we live in difficult and litigious times. Any termination of an employee today can lead to a federal lawsuit. However, companies do have the choice of lighting a candle instead of just cursing the darkness. The adoption of an employee handbook in conjunction with progressive disciplinary policies, supervisor training, consistent documentation of disciplinary action can reduce the chances that your company will be involved in an expensive lawsuit.

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